TMI Blog1972 (2) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Income-tax Act, 1961, or have without reasonable cause failed to furnish it within the time allowed and in the manner required by the said section 139(1) or by another notice asking the petitioner why a penalty should not be imposed for failure to pay the advance tax as required under the law. The petitioner is a partnership firm. The petitioner applied for registration of the firm but it was not allowed. The petitioner appealed against the order of refusal to grant registration under the provisions of the Income-tax Act. The said appeal, it is alleged, is still pending. For the assessment year 1963-64, respondent No. 1 assessed the total income of the petitioner at a sum of Rs. 6,56,260 during the year as a non-registered firm. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h section 271 of the Act for the penalty proceedings. Being aggrieved by the said notices, the petitioner moved this court and obtained the present rule. Affidavit has been filed by the respondent stating inter alia, that the petitioner applied for extension of time to file the return after 30th September, 1969. Thereafter, no application was made, On the application by Form No. VI the petitioner was given extension till 30th September, 1964, as prayed for but no further time was asked for. The petitioner, it is alleged, became a defaulter within the meaning of section 271(1)(b) of the Act after 30th September, 1964. It is further alleged that the interest was charged, however, with effect from 1st January, 1964, from the petitioner on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 139, the respondent cannot initiate proceedings under section 271 for penalty inasmuch as it amounts to double jeopardy. Mr. Sen Gupta on behalf of the revenue contended that the assessment proceeding and penalty proceeding are parallel proceedings. The argument of Mr. Son Gupta is that the interest on the assessed amount is not penal interest. The interest is to be paid by the petitioner because he did not file the return within the time allowed by the Income-tax Officer under section 139(1) or (2) and a penalty proceeding is attracted if the assessee does not file a return within the time allowed under sub-sections (1) and (2) by the Income-tax Officer. If return has not been filed within the time allowed by the Income-tax Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) whether those losses could be carried forward after being set off under section 24(2) of the Act. The first part of the question stood concluded by the decision of this court in Ranchhoddas Karsondas case. The Income-tax Officer could not have ignored the return and had to determine those losses. Section 24(2) confers the benefit of losses being set off and carried forward and there is no provision in section 22 under which losses have to be determined for the purpose of section 24(2). The question which immediately arises is whether section 22(2A) places any limitation on that right. This sub-section which has been reproduced before simply says that in order to get the benefit of section 24(2) the assessee must submit his loss return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be initiated on the petitioner's failure to file the return within the time allowed under section 139(1) and 139(2) of the Act. Under section 139(1) if the assessee makes an application in Form VI, the Income-tax Officer may extend the date for furnishing the return but he can extend the said time up to 31st of December of the year without charging any interest and, beyond that, the interest on the assessed amount will be under the statute itself leviable. In the matter of penalty proceeding, if the Income-tax Officer has given extension of time, the penalty proceeding cannot be initiated but if no such extension is made or if the return has been filed beyond the time allowed by the Income-tax Officer, the penalty proceeding can be initia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessed amount. The said provision is a provision for calculation of the interest and it cannot be said to be a penal interest as it has been argued by Mr. Bhattacharjee. The penalty proceeding is a quite different proceeding. The condition precedent for the initiation of penalty proceeding is that the petitioner did not file the return within the time allowed under section 139(1). Under section 139(1) and (2), even if an assessee did not file the return within the time granted by the Income-tax Officer, but filed the return before the assessment proceeding came to a conclusion under section 143(3), it cannot be said that he has filed the return within the time allowed by the Income-tax Officer, by section, 139(1) or (2). The case of Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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